criminal procedure - north carolina's new approach to

Campbell Law Review Campbell Law Review

Volume 11 Issue 1 Winter 1988 Article 3

1988

Criminal Procedure - North Carolina's New Approach to Recanted Criminal Procedure - North Carolina's New Approach to Recanted

Testimony - Testimony - State v. Britt

Walter L. Jones

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Recommended Citation Recommended Citation Walter L. Jones, Criminal Procedure - North Carolina's New Approach to Recanted Testimony - State v. Britt, 11 CAMPBELL L. REV. 57 (1988).

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NOTES

CRIMINAL PROCEDURE - NORTH CAROLINA'S NEW AP-PROACH TO RECANTED TESTIMONY - State v. Britt

INTRODUCTION

The American judicial system is founded on the principle thateveryone is entitled to a day in court and that every American hasa right to at least one fair trial.1 However, some judges and schol-ars have different opinions regarding one's right to another day incourt based on the assertion that a witness recanted testimony in aprevious trial. The questions and criticisms surrounding the dis-putes between different rules grow as jurisdictions across the na-tion align themselves to one standard or another.' The North Car-olina Supreme Court has appeared to carve a middle road betweenthe standards which will create a more just and workable solutionfor trial judges who face the recanted testimony problem in thisState.'

In recent years, courts have been troubled with how and underwhat circumstances recanted testimony can be a ground for a newtrial." Courts have brought forward various views on how to bestdeal with the issue. Some courts are content with treating recantedtestimony as a form of newly discovered evidence, while othercourts have considered recanted testimony as a special ground fora new trial.5 In November of 1987, the North Carolina SupremeCourt faced this issue, and in deciding State v. Britt, the justicesheld that recanted testimony will receive special treatment in

1. U.S. Const. amend. VI.2. See State v. Robillard, 146 Vt. 623, 508 A.2d 709 (1986) (supports the

traditional Berry rule); But see State v. Lawrence, 112 Idaho App. 149, 730 P.2d1069 (1986) (supports the newer Larrison rule).

3. State v. Britt, 320 N.C. 705, 714, 360 S.E.2d 660, 665 (1987).4. Stevenson v. State, 299 Md. 297, 473 A.2d 450 (1984); State v. Caldwell,

322 N.W.2d 574 (Minn. 1982).5. See supra note 2.

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Jones: Criminal Procedure - North Carolina's New Approach to Recanted Te

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CAMPBELL LAW REVIEW

North Carolina.'Britt placed North Carolina in a minority position by distin-

guishing recanted testimony as a special ground for a new trial.'The court adopted a modified version of the three part test setforth in Larrison v. United States,8 providing North Carolina pris-oners with a more feasible opportunity for post-conviction reliefthan they would have received under pre-Britt standards. In addi-tion, the court has provided North Carolina trial courts a moreworkable test that satisfies the critics of the Larrison and pre-Brittstandard.

This Note will discuss how other jurisdictions have attemptedto deal with recanted testimony and the criticisms directed towardthese methods. This Note will further discuss why the modifiedversion of the Larrison rule, as adopted by the North Carolina Su-preme Court, is immune from these same criticisms. With Britt,the court seems to have adopted Larrison's positive principleswithout adding fuel to the conflict that decision created.

THE CASE

On May 7, 1984, Jerome Parker Britt was found guilty of firstdegree murder in North Hampton County Superior Court.9 Theevidence showed that the defendant believed the victim to be hav-ing an affair with his estranged wife.10 Four witnesses testified thatBritt entered Lowe's Fish Market in Seaboard, North Carolinawith a shotgun, announced to the victim that he planned to killhim, and shot him four or five times.'" A subsequent investigationconfirmed the victim was armed. 2

After Britt's conviction, Joe Louis Moody recanted his testi-mony and filed an affidavit which in substance corroborated thedefendant's assertion that he had acted in self-defense.' 3 The de-fendant sought a new trial pursuant to N.C.G.S. section 15A-

6. 320 N.C. at 714, 360 S.E.2d at 665.7. Id. (the Britt court recognized that only four other states have adopted

the Larrison rule).8. 24 F.2d 87 (7th Cir. 1928).9. 320 N.C. at 706, 360 S.E.2d at 660.

10. Id.11. Id.12. Id.13. Id. at 711, 360 S.E.2d at 663 (Britt's assertion was that he had entered

the building unarmed and had returned for the gun after the victim began todraw his).

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1415(b)(6) (1983), which permits a party to obtain a new trial if heshows: first, that the evidence could not have been discoveredthrough due diligence before the trial; and second, that it is di-rectly and materially related to the defendant's guilt or inno-cence. 14 After hearing testimony from Moody and the investigatingofficer, the trial judge denied Britt's motion.' 5

Britt appealed to the North Carolina Supreme Court assertingthat the superior court's evidentiary holding should be over-turned."6 The North Carolina Supreme Court examined the re-quirements for a new trial based on recanted testimony 7 and af-firmed the trial court.

Despite the fact that Britt's request for relief was not granted,the North Carolina Supreme Court's decision marked a considera-ble deviation from the usual practice of treating recanted testi-mony as a form of newly discovered evidence.' 8 After finding faultwith the newly discovered evidence, the court looked toward thetest set forth in Larrison which held that recanted testimony canbe grounds for a new trial if three requirements are met: first, thecourt is reasonably well satisfied that the testimony given by a ma-terial witness is false; second, that without it the jury might havereached a different conclusion; and third, the party seeking thenew trial was taken by surprise when the false testimony was givenand was unable to meet it or did not know of its falsity until afterthe trial.' 9

The court then created and adopted a modified version of theLarrison rule to be applied by future North Carolina courts inevaluating recanted testimony.2"

14. N.C. GEN. STAT. § 15A-1415(b)(6) (1983) (permits a defendant to make a

motion for appropriate relief more than ten days after the entry of judgment if:

"Evidence is available which was unknown or unavailable to the defendant at the

time of the trial which could not with due diligence have been discovered or madeavailable at that time, and which had a direct and material bearing upon the guilt

or innocence of the defendant." The federal equivalent is FEDERAL RULE OF CRIMI-

NAL PROCEDURE 33).15. 320 N.C. at 711, 360 S.E.2d at 663.

16. Id. at 712, 360 S.E.2d at 663.17. Id.18. See infra note 48.19. Larrison, 24 F.2d at 88.20. Britt, 320 N.C. at 715, 360 S.E.2d at 665.

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BACKGROUND

Recanted testimony is testimony that has been withdrawn orrepudiated formally and publicly.21 A witness must admit that hisprior statements, made under oath, were false.22 Yet whether andunder what circumstances the witness's recantation will serve asgrounds for a new trial, is a matter of judicial debate.

Courts have granted few motions for new trials on the basis ofrecanted testimony.23 One reason might be that recantations havenot always received the attention that they are now getting fromthe judicial system.2 4 Prior Larrison, most judges considered re-canted testimony to be only a type of newly discovered evidenceand treated incidents of perjury as they would any other groundfor new trial.23

To determine whether a defendant is entitled to a new trialbased on newly discovered evidence, American courts have tradi-tionally turned to the landmark case of Berry v. State.26 Essen-tially all jurisdictions have employed the Berry standard for re-viewing newly discovered evidence or have adopted a modifiedversion of it.27 To obtain a new trial under the Berry rule a defend-ant must show:

1. that the evidence has come to his knowledge since thetrial;

2. that it was not owing to want of due diligence that it didnot come sooner;

3. that it is so material that it would probably produce a dif-ferent verdict if the new trial were granted;

4. that it is not cumulative only;5. that the affidavit of the witness himself should be pro-

duced or its absence accounted for; and6. a new trial will not be granted if the only object of the

testimony is to impeach the character or credit of a witness.28

Case law suggests that there are two barriers to these motions.

21. Pradlik v. State, 131 Conn. 682, -, 41 A.2d 906, 907 (1945).22. United States v. Strauss, 443 F.2d 986, 989 (1st Cir. 1971).23. See generally, Note, Gary Dotson as Victim: The Legal Response to Re-

canting Testimony, 35 EMORY L.J. 973 (1986).24. Id.25. Id.26. Berry v. State, 10 Ga. 511 (1851).27. 10 Am. Jur. 2D, New Trial § 166 (1971).28. Berry, 10 Ga. at 527.

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The first barrier is the strict scrutiny requirements incorporatedwithin the six prong Berry test. 9 The defendant cannot overcomethis burden unless the circumstances of the testimony indicatethat it had an obvious influence over the jury's decision. Few mo-tions for new trial have been granted under the Berry rule. 0

The second barrier is the judicial distaste for perjury. The re-luctance to grant new trials because a witness has recanted is welldocumented.3 1 When a witness repudiates he demonstrates a lackof trustworthiness and credibility.2 Some jurisdictions go as far asrequiring the perjuring witness's death or conviction before theywill grant a new trial.3 Courts which have not evaluated recanta-tions under a Berry-type rule have consistently denied the defend-ant relief.3 4 This inherent judicial skepticism, when coupled withthe court's interest and economy and finality, leads to the conclu-sion that the chances for a new trial are unlikely regardless of whatrule the trial judge applies.

Larrison is clearly not a modification of the old rule, rather itis a step in another direction towards more flexibility and leniency.That court's reasoning was founded upon the belief that perjury isa subject that demands greater judicial attention than it is usuallyafforded. 5 In reaching this conclusion, the Larrison court reliedprimarily on a decision it had rendered a year earlier, Martin v.United States. 6

In Martin, the Fifth Circuit assumed a judicial duty to grant a

29. Id.30. See Grace v. Butterworth, 586 F.2d 878 (1st Cir. 1978) (held that a wit-

ness who could corroborate the defendant's alibi would only give cumulative testi-mony). See also United States v. Weidman, 572 F.2d 1199 (1978), cert. denied,439 U.S. 821 (1979) (held that where the government refused to tell defendantthat witnesses testifying against him were being granted immunity, such denialwas not material enough to warrant a new trial).

31. See, e.g., United States v. Troche, 213 F.2d 401, 403 (2d Cir. 1954); Harri-son v. United States, 7 F.2d 259, 262 (2d Cir. 1925) (holding that recantations arelooked upon with "the utmost suspicion").

32. See Communist Party of the United States v. Subversive Activities Con-trol Board, 351 U.S. 115, 124 (1956).

33. Gilliken v. Springle, 254 N.C. 240, 118 S.E.2d 611 (1961) (The SupremeCourt of North Carolina held that this is the rule in civil actions); Powell v. Com-monwealth, 133 Va. 741, 112 S.E. 657 (1922); Blake v. Rhode Island Co., 32 R.I.213, 78 A. 834 (1911);.

34. Grace, 586 F.2d 878 (1st Cir. 1978); Weidman, 572 F.2d 1199 (7th Cir.1978), cert. denied, 439 U.S. 821 (1978).

35. Larrison, 24 F.2d at 82.36. 17 F.2d 973 (5th Cir. 1927).

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new trial on every occasion that a witness admits perjury or mis-take as long as his testimony was material and not cumulative.3 7

The court felt that the only way to assure that perjured testimonydid not adversely affect the defendant's right to a fair trial was toallow him a second chance to exonerate himself.3

Larrison is a restatement of the principles set forth in Martin.The Larrison court, in dicta, created the three-part test which hasled to the current debate. Ironically, neither Martin nor Larrisongranted the defendant a new trial, both holding that the recanta-tions were not believable. 9

Since its inception, Larrison has received mixed reviews. Pres-ently the majority of federal circuits employ the Larrison stan-dard40 while an overwhelming majority of state courts still rely onthe traditional Berry standard.4' A few courts have rejected Lar-rison outright.42 The Fourth Circuit adopted the Larrison test inUnited States v. Wallace in 1976. 43 The Britt court cited Wallacefavorably in an attempt to justify their holding."'

Britt has included North Carolina in the handful of states thatnow impose a more lenient standard.46 Although North Carolina

37. Id. at 976.38. Id.39. Larrison, 24 F.2d at 89; Martin, 17 F.2d at 976.40. United States v. Gabriel, 597 F.2d 95 (7th Cir. 1979), cert. denied, 444

U.S. 858 (1979); United States v. Runge, 593 F.2d 66 (8th Cir. 1979), cert. denied,444 U.S. 859 (1979); United States v. Jackson, 579 F.2d 553, (10th Cir. 1978), cert.denied, 439 U.S. 981 (1978); United States v. Wallace, 528 F.2d 863 (4th Cir.1976); United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974), cert. denied, 420U.S. 991 (1975); United States v. Meyers, 484 F.2d 113 (3rd Cir. 1973); UnitedStates v. Strauss, 443 F.2d 986 (1st Cir. 1971), cert. denied, 404 U.S. 851 (1971);Newman v. United States, 238 F.2d 861 (5th Cir. 1956); Gordon v. United States,178 F.2d 896 (6th Cir. 1949), cert. denied, 339 U.S. 935 (1950).

41. State v. Britt, 320 N.C. 705, 715, 360 S.E.2d 660, 665 (1987).42. Stevenson v. State, 299 Md. 297, 473 A.2d 450 (1984); State v. Robillard,

146 Vt. 623, 508 A.2d 709 (1986).43. United States v. Wallace, 528 F.2d 863 (4th Cir. 1976).44. 320 N.C. at 714, 360 S.E.2d at 665.45. Those states are Delaware in Blankenship v. State, 447 A.2d 428 (Del.

1982); Idaho in Lawrence, 112 Idaho App. 149, 730 P.2d 1069 (1986); Minnesotain Caldwell, 322 N.W.2d 574 (Minn. 1982); South Dakota in Pickering v. State,260 N.W.2d 234 (S.D. 1977). These states apply Larrison. Illinois applies a stan-dard different from Larrison or Berry. In People v. Bracey, 51 Ill. 2d 514, 283N.E.2d 685 (1972), the Illinois Supreme Court held that the defendant must showperjured testimony was used. If he does the burden shifts to the state to prove itwas harmless beyond a reasonable doubt.

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has adopted a modified version rather than the pure form of theLarrison rule, its premise is still based on the notion that the bur-den on defendants who have been convicted through perjured tes-timony should not be as great as it has traditionally been.

A case-by-case analysis of past North Carolina decisions leavessome doubt as to what the previous North Carolina position waswith respect to recanted testimony. In State v. E~lers,46 the courtfaced a situation where a key state witness had repudiated his tes-timony. In Ellers the court did not apply a newly discovered evi-dence standard but instead held that in this situation such a stan-dard would not be applicable.47 However, in several subsequentdecisions the court applied a North Carolina version of the Berrynewly discovered evidence rule to determine whether the defend-ant was entitled to a new trial. 8

The North Carolina version of the Berry rule is even more de-manding than the original. Under the North Carolina rule a de-fendant is faced with seven perequisites:

1. that a witness or witnesses will give newly discoveredevidence;

2. that such newly discovered evidence is probably true;3. that it is competent, material, and relevant;4. that due diligence was used and proper means were em-

ployed to procure the testimony at trial;5. that the newly discovered evidence is not merely

cumulative;6. that it does not tend only to contradict a former witness or

to impeach or discredit him;7. that it is of such a nature as to show that in another trial a

different result will probably be reached and that the right willprevail. 49

Structurally, the North Carolina version of Berry differs fromthe original only through the additional requirement that the evi-dence being offered probably be true.50 This extra requirement issignificant in that it rests in the trial judge more discretion thanthe traditional Berry rule. By vesting the trial judge with more

46. 234 N.C. 42, 65 S.E.2d 503 (1951).47. Id. at 45, 65 S.E.2d at 505.48. State v. Blalock, 13 N.C. App. 711, 187 S.E.2d 458 (1972); State v. Mor-

row, 264 N.C. 77, 140 S.E.2d 767 (1965); State v. Roddy, 253 N.C. 574, 117 S.E.2d401 (1960).

49. State v. Cronin, 299 N.C. 230, 243, 262 S.E.2d 277, 286 (1980).50. Britt, 320 N.C. 705, 715, 360 S.E.2d 660, 665 (1987).

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personal discretion, the North Carolina version of the Berry rulehas invaded the jury's domain by making the court the sole judgeof new testimony's credibility in instances where a witness hasrecanted.

In State v. Nickerson,51 the last case prior to Britt to dealwith recanted testimony, the North Carolina Supreme Court fore-shadowed the Britt decision. The court awarded the recantationissue in its decision but did make a quasi-commitment to the is-sue's uniqueness.52 The court cited Ellers as precedent and recog-nized that the rules governing recanted testimony and newly dis-covered evidence are not the same.53 Thus, Nickerson became animportant step towards rationalizing the Britt court's decision.

Britt is not the first attempt by a state or federal court tomodify Larrison. The Supreme Court of Vermont in State v. Ro-billard54 adopted the Larrison rule but employed a "probability"rather than a "might" standard for evaluating the effect of the per-jury on the jury.55 In United States v. Willis," a Pennsylvania dis-trict court created a version even more liberal than Larrison itself.That court held that the judge should not only consider the newtestimony's effect on the jury's verdict but should also consider theimpact it has on the recanting witness' credibility. 7

Robillard and Willis demonstrate that it is not a novel idea tomodify the Larrison rule. The Britt court did not break newground, however, it did enter uncharted waters. Time will deter-mine the decision's validity.

ANALYSIS

The Britt court acted on its own initiative by adopting a mod-ified Larrison rule through a sua sponte holding." In doing so, thecourt used Larrison's liberal principles as the basis for a more real-istic and workable alternative. In its decision, the Britt court elimi-

51. State v. Nickerson, 320 N.C. 603, 359 S.E.2d 760 (1987).52. Id. at 609, 359 S.E.2d 763 (1987).53. Id.54. 146 Vt. 623, 508 A.2d 709 (1986).55. Id. at _ , 508 A.2d at 713.56. United States v. Willis, 467 F. Supp. 1111 (W.D. Pa. 1978) vacated and

indictment dismissed on request of U.S. Attorney's office, 606 F.2d 391 (3rd Cir.1979).

57. Id. at 1113.58. Neither the appellants' nor appellees' brief advocated adoption of the

Larrison rule.

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nated the Larrison test's third prong that requires the defense betaken by surprise.59 Furthermore, the court re-structured the firsttwo prongs of the Larrison test to reach a compromise capable ofsatisfying critics of both Larrison and Berry. Under the new Brittrule, a defendant may obtain a new trial if:

1. The court is reasonably well satisfied that the testimonygiven by a material witness is false, and

2. There is a reasonable possibility that, had the false testi-mony not been admitted, a different result would have beenreached at trial.60

The court used very little analysis to justify its holding. Otherthan drawing a distinction between recanted testimony and newlydiscovered evidence, the only indicia given by the court to supportits reasoning was that it saw Larrison as the better rule. 1 Thecourt did cite numerous precedents that expressed the judicial po-sitions behind both the Berry and Larrison rules.82 In doing so thecourt implied that its decision was based on both rules' usualcriticisms.

The problems presented can be most easily illustrated bydrawing an imaginary scale. On one side of the scale rests recantedtestimony's dubious character. The need for finality,6" judicialeconomy," and the possibilities of collusion and coercion' 5 shouldbe included. Courts, that feel this is the heavier side, apply theBerry rule in principle.

On the scale's other side sits a defendant's right to a fair trialand perjury's negative impact. In the words of the Supreme Courtin their holding in Mesarosh v. United States,66 "the Court mustsee that the waters of justice are not polluted. Pollution havingtaken place here, the condition should be remedied at the earliestpossible opportunity. '67 Courts which feel the greater weight lies

59. Britt, 320 N.C. at 715, 360 S.E.2d at 665.60. Id.61. Id. at 714, 360 S.E.2d at 665.62. See supra notes 4 and 40 and accompanying cases.63. Kyle v. United States, 297 F.2d 507, 514 (2d Cir. 1961) cert. denied, 377

U.S. 909 (1964).64. Id.65. See, e.g., United States v. Atkins, 545 F.2d 1153 (8th Cir. 1976); United

States v. Johnson, 487 F.2d 1278 (4th Cir. 1973).66. Mesarosh v. United States, 352 U.S. 1 (1956).67. Id. at 14.

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with this reasoning apply the Larrison standard's principles.Unfortunately, the judicial system has yet to produce a rule

capable of balancing both sets of interests. The Britt rule may pos-sibly satisfy that need. However, the rule must first prove that itcan survive the criticisms that have been addressed toward theoriginal Larrison standard.

A. Criticism of Larrison

The most common complaint by Larrison critics is that it is atheory that is too liberal. 8 The general feeling is that the "might"standard employed by that rule would require reversal in virtuallyevery case. 9 However, courts have declined to apply the ordinarymeaning of the word "might." "Might" has been regarded as "morethan an outside chance ' 70 and "more than a faint possibility" 71 but"less than a probability. 72 These interpretations illustrate Lar-rison's viability. Courts that apply the Larrison rule do not auto-matically grant new trials under all circumstances. 73 Rather, therule has afforded most defendants little more success than theywould have received without it.74

Proponents have been quick to point out that few motions bydefendants for a new trial under the Larrison standards have beensuccessful. 7 A majority of courts that have evaluated recanted tes-timony under both standards have reached similar decisions byholding that a typical case fails under either rule.76

Most judges deny motions for new trials on their decision that

68. See generally Note, Criminal Procedure: Minnesota Adopts the LarrisonStandard for Granting a New Trial Because of Newly Discovered Evidence:State v. Caldwell, 67 MINN. L. REV. 1314 (1983) (hereinafter Note, CriminalProcedure).

69. Id.70. Kyle, 297 F.2d at 512.71. Wallace, 528 F.2d at 866 n. 4 (4th Cir. 1976).72. Kyle, 297 F.2d at 512.73. Note, Criminal Procedure, 67 MINN. L. REV. 1314 (1983).74. E.g., Gabriel, 597 F.2d 95 (7th Cir. 1979) (new evidence offered tended

only to impeach witness' credibility), cert. denied, 444 U.S. 858 (1979); UnitedStates v. Robinson, 585 F.2d 274 (7th Cir. 1978) (defendant did not use diligencein discovering evidence), cert. denied, 441 U.S. 947 (1979).

75. Id.76. E.g., United States v. Hamilton, 559 F.2d 1370 (5th Cir. 1977) (court held

neither standard was met); United States v. Mackin, 561 F.2d 958 (D.C. Cir. 1977)(recantation did not warrant new trial under either standard) cert. denied, 434U.S. 959 (1977).

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the recantation is not believable." Thus, most cases are resolvedbefore the testimony is evaluated for its effect on the jury.7 8 If ajudge is not "reasonably well satisfied" that the first testimony wasfalse he need not go any further."

Clearly the trial judge is vested with considerable discretion.He, not the jury, determines which of the recanting witnesses'sstatements are believable. Witnesses are not alien to the tempta-tion to recant. Collusion, corroboration, and fraud upon the courtare important concerns.80 Even the belief that the defendant hasundergone a moral conversion has induced a witness to repudiate.81

The veracity or falsity of recantations are a matter of judicialopinion. If the trial judge places credibility with the witness's sub-sequent statement, he must consider the lie's impact on the jury."It is here that Larrison's "might" language comes into play. Thetrial judge must ask himself whether the perjured testimony wasinfluential enough to convince the jury that the defendant wasguilty." This is a question that is easily answered if the recantingwitness's testimony was obtained through prosecutorial miscon-duct. The United States Supreme Court has consistently held thatprosecutorial misconduct, and even prosecutorial negligence, are aviolation of the Constitutional guarantees of due process.8 '

The answer is seldom this clear. However, the trial judge cansolve his dilemma by simply relying on the burdens of persuasionplaced upon the prosecution in a criminal trial. The state must al-ways prove guilt beyond a reasonable doubt.8 5

In United States v. Krasny 6 and United States v. Stofsky, 7

the Second and Ninth Circuits expressed the usual criticism that

77. See supra note 31.78. See, e.g., United States v. Radney, 484 F. Supp. 1032 (D.C. Ala. 1980);

United States v. Bujese, 371 F.2d 120 (3rd Cir. 1967) (both courts found subse-quent recantation to be unbelievable).

79. Larrison, 24 F.2d at 87.80. See supra note 65.81. Lindsey v. United States, 368 F.2d 633 (5th Cir. 1966).82. Larrison, 24 F.2d at 88 (if the recantation is believed, the test must be

applied to evaluate the impact of the perjury).83. Both Berry and Larrison vest discretion for considering motions for new

trial in the trial judge.84. See, e.g., Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois,

360 U.S. 264 (1959).85. W. LAFAVE, CRIMINAL LAW 2 Ed., § 1.4(a), at 17 (1986).86. United States v. Krasny, 607 F.2d 840 (1979).87. United States v. Stofsky, 527 F.2d 237 (1975).

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Larrison's "might" standard would require reversal in every case. 8

What these courts and other critics have failed to note is that inthe criminal arena the required burden of proof is substantialenough to provide the trial judge with adequate guidelines of whatwould alter the jury's verdict. If the false testimony was of suffi-cient substance to support the decision that the defendant is guiltybeyond a reasonable doubt then the case warrants a new trial. Ifnot, then the verdict should stand. Testimony that was merely cor-roborative, cumulative, or remotely circumstantial may be disre-garded under the Larrison standard if the remaining evidence wascapable of sustaining the burden of proof.

The degree of certainty required by Larrison, the "might"standard, should not be bothersome to judges when viewed in thismanner. Case law demonstrates that the fears expressed by theLarrison critics have not come to pass.8 9 Larrison's principles haveonly been given lip service allowing it no opportunity for it toprove itself the better rule.

B. Comparison of Larrison and Berry

The principles behind Larrison and Berry vary greatly in the-ory. If literally applied, the Berry rule would allow a new trial inonly the most severe situations while the Larrison rule would makethe possibility of a new trial much more likely. Current case lawtends to suggest that these are more illusory than real since newtrials are seldom granted on recanted testimony grounds regardlessof the standard applied.90 The reason may be that Larrison andBerry are more similar than either rule's proponents are willing toadmit.

Regardless of whether the trial judge determines that the jury"might" have reached a different conclusion or that a new jurywould "probably" reach a different conclusion, that decision issolely his.9 On appeal, the standard of review of the trial judge'sdecision not to grant a new trial will be abuse of discretion. Thereis little chance of success under either rule since appellate courtsseldom overrule a decision based on abuse of a trial judge'sdiscretion.2

88. Krasny, 607 F.2d at 843; Stofsky, 527 F.2d at 245.89. See supra note 74.90. See supra note 78.91. See supra note 84.92. Krasny, 607 F.2d at 840.

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Larrison and Berry further concur by requiring that the newtestimony be material. 3 "If the requirement of materiality is notdemonstrated there is no need to consider whether knowledge ofthe falsity by the factfinder 'might' or 'probably' would have re-sulted in a different verdict." 9 If a witness's testimony was notmaterial it probably had little effect on the first jury's decision andwould probably have little effect on a jury's decision in a new trial.

A third similarity is Berry's "due diligence" requirement andLarrison's surprise requirement. Under either standard, the newtestimony that is now being offered must have been unavailable tothe defendant at trial.93 It is not the court's policy to allow thedefendant "a second bite at the apple."9

The distinctions between the standards are more obvious anddramatic, despite these similarities. Collectively, the differences il-lustrate the notion that Berry is strict in theory while Larrison ismuch more lenient. Past application of both rules has not favoredthis reasoning.

9 7

Even at first glance, the rigidity of the Berry rule is apparent.The newly discovered evidence test's six steps are filtering mecha-nisms that serve as impediments to most new trial motions. Ineach instance the defendant is put in the difficult position of hav-ing to overcome a substantial burden of proof. In addition, there isthe strong judicial disfavor for granting new trials because a wit-ness has recanted.9 8 These factors leave the defendant with little orno chance of securing a new trial.

The Larrison standard is an effort to encourage judges to allo-cate more consideration to recanted testimony. Larrison's effect isto place recanted testimony in a separate and distinct sphere whilelessening the burden of proof the defendant must meet to obtain anew trial.9 9 The result is that the Larrison principles differ withthose set forth in Berry in three ways. 100

First, there is a difference regarding the degree of certainty

93. The Larrison standard requires that the recanting witness be a materialwitness. Berry requires the new testimony to be material enough to change theverdict.

94. Stevenson v. State, 299 Md. 297, - , 473 A.2d 450, 453 (1984).95. Id.96. Lawrence, 112 Idaho App. at __ , 730 P.2d n.2 at 1072.97. See supra notes 30 and 74 and accompanying text.98. See supra note 31 and accompanying text.99. Martin, 17 F.2d at 976.

100. Larrison, 24 F.2d at 88.

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the trial judge must satisfy in order to grant a new trial. °10 Lar-rison asks the judge to determine whether the false testimony"might" have influenced the jury in its decision of guilt.102 Thestandard of certainty is more encompassing than the "probability"requirement of Berry. A defendant will obviously have to presentmore conclusive and persuasive evidence that his right to a fairtrial was violated in order to get a new trial under the Berry rule.Since the burden on the defendant in a court applying the Lar-rison rule is less, the trial judge has less opportunity to exercisediscretion in his decision.

The second contrast revolves around the place in time wherethe false testimony must be evaluated. 0 3 The Larrison rule consid-ers the appropriate time to be in the past. A trial judge must retro-spectively scrutinize the jury's decision in the original trial and de-termine whether they might have rendered the same verdictwithout the perjury.10 4

Berry, on the other hand, looks toward the possible new trialand considers what the verdict probably would be without the falsetestimony.'0 5 The trial judge must predict how another future jurywould react. He is forced to make presumptions that the previoustrial's tainted portions would not have an equally adverse impact ifa new trial were granted.

Larrison's advantage is apparent. The trial judge is faced onlywith considering what has already occurred. 06 He is not forced toevaluate future probabilities. A new trial should be granted if thejury "might" have reached a different conclusion without the falsetestimony.117

The third distinction between Berry and Larrison relates di-rectly to this time element.10 8 The Larrison rule takes the perjuredtestimony away from the jury and then asks the question ofwhether they would have reached the same verdict in its ab-

101. See generally Note, Ninth Circuit Adopts Berry Standard For NewTrials Based Upon Perjured Testimony, 11 GOLDEN GATE 171 (1981). (hereinaf-ter Note, Ninth Circuit Adopts).

102. Id.103. Id.104. Larrison, 24 F.2d at 88.105. Berry, 10 Ga. at 527.106. Larrison, 24 F.2d at 88.107. Id. at 87.108. Note, Ninth Circuit Adopts, 11 GOLDEN GATE 171 (1981).

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sence. 1°9 Berry, by looking towards the next trial, would place theprior testimony as well as the later recantation before the court. 110

The jury would be presented with the opportunity to assess thecredibility of the witness knowing that he has fabricated his state-ment on one of the two occasions. This certainly must enter intothe trial judge's prediction of what the verdict would be at thenext trial.

Precedent would suggest that Larrison has failed in its ambi-tion to create a more equitable rule."' This has happened becausethe rule in practice differs from the rule in principle. It has beensuggested that false testimony damaging enough to pass the Lar-rison test would pass under Berry as well." 2 The Britt decisionmay have presented North Carolina with the opportunity to reacha compromise between these two standards and what can be realis-tically accomplished.

C. The Britt Decision

The Britt court has not only attempted to create a more ac-ceptable version of Larrison but has more importantly left thoseseeking a new trial with an alternative to the harsh test applied tonewly discovered evidence. The Britt rule should eliminate theBerry hardship that existed in earlier cases.

The most obvious difference between Britt and the Berrynewly discovered evidence rule is the degree of certainty which atrial judge must have with respect to the false testimony's detri-mental effect on the jury. On review, the trial judge now must findonly that there was a "reasonable possibility" the jury would havecome to a different conclusion. 1 3 The new standard has the poten-tial of fulfilling the Berry test's needs and Larrison's expectations.By imposing a "reasonable possibility" standard, judges are af-forded sufficient latitude to make judgments based on a realisticpicture of the circumstances. Furthermore, the Britt requirementsshould eliminate the traditional complaint that the Berry standardvests the trial judge with too much discretion.

The Britt court also eliminated the Larrison requirement that

109. Larrison, 24 F.2d at 88.110. Berry, 10 Ga. at 527.111. See supra note 76.112. Note, Criminal Procedure, 67 MINN. L. REV. 1314 (1983).113. Britt, 320 N.C. at 715, 360 S.E.2d at 665.

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the defense be taken by surprise."" In doing so the court did notqualify its reasons but did reflect the opinion that the surprise re-quirement should not be necessary in recanted testimony cases. " 'This decision creates a better rule because the effect of perjury isrepulsive to any attempt at a decision based on the facts.

Perjured testimony is unlike any other form of evidence be-cause it is not only deceptive but highly influential on jurors whosee and hear a witness make false statements under oath." 6 Eventhough the defense may be able to prepare and meet the perjury attrial, it is obviously a difficult obstacle in the path of justice. Thejudicial system's goal is to allow the jury to make their decisionbased on facts as actually perceived by the witnesses. " 7 This goalis defeated whenever false evidence is presented at trial. The Brittcourt's decision to eliminate the surprise requirement is judicialrecognition of the feeling that perjury is repugnant to any attemptat a fair and accurate result and should be rectified whendiscovered. " 8

CONCLUSION

The Britt holding will allow a convicted defendant a new trialwhen a witness recants. The trial judge must be reasonably wellsatisfied that the testimony was false and there was a reasonablepossibility that the jury would have reached a different conclusionwithout it. North Carolina has adopted a modified version rule ap-plied by a minority of states but by a majority of federal circuits.

What remains to be seen is whether the courts of North Caro-lina will apply the new rule with the same sense of fair play thatled to its creation. If they do not, then Britt does nothing morethan camouflage harsh practice with lenient words. If they do, thencriminal defendants who have been convicted on the basis of per-jured testimony should find that the North Carolina SupremeCourt has taken steps to insure that their right to a fair trial is wellprotected in this state.

Walter L. Jones

114. Id.115. Id.116. Mesarosh, 352 U.S. at 14.117. Id.118. Britt, 320 N.C. at 715, 360 S.E.2d. at 665.

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criminal procedure - north carolina's new approach to

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